Says Richard A. Sauber (lawyer for Time's Matthew Cooper), explaining the relationship between the new revelations (that Scooter Libby took part in authorized disclosures to controvert war critic Joe Wilson) and Libby's defense to perjury (that he forgot who said what about Wilson's wife Valerie Plame).

Meanwhile, Libby's lawyer, William Jeffress, says the special prosecutor's revelation "is a complete sidelight" to the charge against his client, that "It's got nothing to do with Wilson's wife."

Fitzgerald's filing was meant specifically to undermine Libby's claim that the issue of the CIA's employment of Plame was of "peripheral" interest to Libby at the time. He said in the filing that leaks regarding Plame were meant to embarrass Wilson by suggesting his wife had organized a CIA-sponsored trip by Wilson to probe Iraq's alleged purchase of nuclear material -- in short, to suggest his trip resulted from nepotism.

Fitzgerald argued, in essence, that the White House effort to rebut Wilson's criticism was so intense, and so preoccupying, that Libby could not have forgotten what he said about Plame. Fitzgerald also noted that Plame's employment was specifically raised as a relevant matter by Cheney, who had directed Libby to disclose information from the NIE.

Even if the two subjects have something to do with each other, the question is how much weight this evidence has. How do you prove someone is lying when they say they forgot? One way is to prove this is the sort of thing you could not have forgotten because of its connection with something else you were paying intensely close attention to.

Quite aside from the prosecution of Scooter Libby are the charges that President Bush was hypocritical for declassifying information to support the war when he has been critical of the unauthorized leaking of information:

[T]he report that the president was himself approving a leak may do serious political damage, said [historian Rick] Shenkman, who has a blog on presidential politics. "It does give the public such a powerful example of hypocrisy that I think it might linger for a while," he said.

Scott McClellan, the president's spokesman, disputed the charge of a double standard on leaks. "There is a difference between declassifying information in the national interest and the unauthorized disclosure" of national security information, Mr. McClellan said Friday. Of the National Intelligence Estimate on Iraq, part of which Mr. Libby shared with Judith Miller, then a Times reporter, Mr. McClellan said, "There was nothing in there that would compromise national security."

Mr. McClellan's tone contrasted sharply with that of administration officials after the N.S.A. story broke in December. Mr. Bush told a news conference at the time: "My personal opinion is it was a shameful act for someone to disclose this very important program in a time of war. The fact that we're discussing this program is helping the enemy."

Others picked up the theme, including Attorney General Alberto R. Gonzales and Porter J. Goss, the C.I.A. director. On Feb. 2, Mr. Goss told a Senate committee, "It is my hope that we will witness a grand jury investigation with reporters present being asked to reveal who is leaking this information."

I hope people will be able to keep these stories straight, but they are complicated and likely to merge, which is, of course, what Bush's critics want.

Today is the second day of a conference on the Ten Commandments with that title, here at the University of Wisconsin. I'm chairing a 2-hour panel that begins at 11:15 this morning, "The Ten Commandments in the Public Square." Here's the lineup:

Jerome Copulsky, “The Ten Commandments and American Civil Religion”

Lesleigh Cushing, “Contemporary American Appropriations of the Ten Commandments”

David Smolin, “The Capacity of the Ten Commandments to Serve as a Unifying Symbol”

John Thatamanil, “Against Heteronomy: Some Tillichian Reflections on The Ten Commandments in Public Life”

Yesterday evening, His Eminence, Dr. Mustafa Ceric, Grand Mufti of Bosnia, gave the plenary address, “The Ten Commandments as a Basis for a Meaningful Jewish-Christian-Muslim Dialogue."

More on the conference later.

UPDATE: A key theme was that the Ten Commandments provide a beneficial common ground for Jews, Christians, and Muslims. Counterthemes: 1. Lots of people fall outside of those three groups, 2. Jews, Christians, and Muslims disagree with each other despite the shared tradition. At dinner tonight, I had a long discussion with a philosopher in which I took the position that the Ten Commandments are not interesting as ideas. It's a rather bland text to concentrate on. Whether God commanded these things or not, people would have figured out most of these rules on their own. There's nothing especially surprising or challenging -- as there is in the Sermon on the Mount.

"... can you find anything that suggests that there is a virtue in cutting children from Medicaid and taking money from the poor and giving it to the rich," said Senator John Kerry, imbuing his politics with religion.

A Roman Catholic who has struggled at times to talk about his own faith, Mr. Kerry also told the group that he believed "deeply in my faith" and that the Koran, the Torah, the Gospels and the Acts of the Apostles had influenced a social conscience that he exercised in politics.

The Koran? Come on!

It's always so painful when Kerry tries to show there's something more to him than politician. He only seems to be even more of a politician. Kerry laid on the Jesus because "the group" he was talking to was something organized by Rev. Al Sharpton. He then brought in the Torah and the Koran -- we can assume -- because it seemed politically unwise to lean toward the Christian religion. But who believes that the Koran has influenced his social conscience? I can believe reading the Old Testament affected how he thinks about the world, though his preference for the word "Torah" must stem from an urge to be inclusive. He wants to include the Muslims too, so he throws in the Koran. If he were really talking about sacred books that he's read, that had an impact on how he thinks about the world, it would be much more believable to cite Buddhist or Hindu texts, which those of us who were young in the 60s were wont to dip into.

April 7, 2006

"Rudy knows that his views on the social issues — abortion, gun control — are one reason not to run," said one friend of Mr. Giuliani's, who, like others, would discuss their conversations only on the condition of anonymity. "I told him that the nomination would be very hard to win. He knows that. But if he doesn't run, a lot of his friends will tell you, it's because he's having too much fun in his life right now."...

"He never had money, he never thought he had money, and now he is making more money on a weekly basis than his father ever dreamed of," [a] former aide said....

Another consideration may be the harsh scrutiny and news coverage that Mr. Giuliani saw his friend and former police commissioner, Bernard B. Kerik, undergo. Mr. Giuliani championed Mr. Kerik's nomination to be Homeland Security chief in 2004, but it collapsed when details about his past emerged. Mr. Giuliani's own complicated history, from reports of organized crime connections in his family to his bellicose conduct in office, would receive new attention; a new, unflattering political documentary, "Giuliani Time," is to be released commercially in New York next month, and at least one forthcoming book is investigating Mr. Giuliani's handling of 9/11.

I'd like to think Giuliani's sheer brilliance as a speaker will allow him to best his opponents, even if they do have loads of material to use against him.

Says Michael Baigent, who is suing the publisher of Dan Brown's "Da Vinci Code," for stealing the "thematic architecture" of his nonfiction book, "The Holy Blood and the Holy Grail." It must have been hard to look at all that money Brown's been making and to know there was some connection to your book, but Baigent deserves to lose, seems likely to lose, and will have blown £2 million attempting to cash in on Brown's success:

Fiona Crawley, a copyright expert with the law firm Bryan Cave LLP, agreed: "A victory for Leigh and Baigent would make it very difficult for novelists, particularly historical novelists. They go to source books to research the history to incorporate into their novel.

"It would call into question how they can research a historical novel without being accused of copyright infringement by the historian who has written the key work on that incident in history."

In issuing his judgment, Justice Peter Smith said that Mr. Brown did indeed rely on "The Holy Blood and the Holy Grail" in writing a section of the book, but he said that Michael Baigent and Richard Leigh, the two authors of earlier book, had failed to prove what the central theme of their book was and thus failed to prove that Mr. Brown had lifted it from them.

In fact, the judge said, the earlier book "does not have a central theme as contended by the claimants: it was an artificial creation for the purposes of the litigation working back from 'The Da Vinci Code.' "

Some voters certainly took the question of getting out now quite literally.

This means some voters who despise the war nonetheless may have voted against the referendum because they fear a hasty exit could cause an even greater calamity in Iraq and the Middle East.

Other voters no doubt saw the referendums as a vehicle for expressing their dissatisfaction with how the war is going. The message from their "yes" votes wasn't "get out" so much as it was "get better."

Still others may have viewed the vote as a referendum on an unpopular president. Given George Bush's poll numbers lately, it's easy to see how "yes" votes could have been boosted.

What a ridiculous exercise to subject us to! How about speculating about what the failure to vote meant? Uh, could you rephrase the question?

Fortunately, the war referenda have no effect. They were only a way to express opinion (inarticulately). Next fall, we're asked to vote on a statewide referendum to express something about gay marriage. The language in that referendum is also confusing, and it's not just an opportunity to blow off steam. It's language to be inserted into the state constitution.

April 6, 2006

I wasn't planning to like this show, but now I've bonded with it. I loved the tasting challenges this week -- where the contestants, blindfolded, had to taste 20 little servings of various ingredients -- both the official one with the classy ingredients and the unofficial junk food party version. Asian tree fruit! Whoppers!

The contestants have taken shape as real characters. I love the ultra nervous Dave. He's the Andrae, with all that emotion and crying. And Stephen can be counted on to say something absurdly arrogant at any moment. He's the Santino. Tiffani's the Chloe. Lee Anne is the Kara. Howard's the Daniel...

Mr. Giuliani... told of seeing a man plunge 100 stories to his death from the center's North Tower. But horrible as the sight was, it was only the beginning.

Moments later, the former mayor said, he saw several more people jump, including two who held hands all the way down. "That image comes back to me every day," Mr. Giuliani told a jury in United States District Court here.

The former mayor, whose cool presence on Sept. 11, 2001, was seen by many as the defining moment of his time in office, did not look at Mr. Moussaoui. Instead, Mr. Giuliani used a pointer and a three-and-a-half-foot scale model of the Twin Towers to depict what he saw that blue-sky morning....

As the former mayor testified, Mr. Moussaoui stared at him. Then, when prosecutors played videotapes of the Twin Towers' destruction, Mr. Moussaoui smiled.

Writes Matt Welch, looking back on his old optimism about bloggers, in contrast to mainstream media pundits:

“What do warbloggers have in common, that most pundits do not?” I enthused. “I’d say a yen for critical thinking, a sense of humor that actually translates into people laughing out loud, a willingness to engage (and encourage) readers, a hostility to the Culture War and other artifacts of the professionalized left-right split of the 1990s…a readiness to admit error [and] a sense of collegial yet brutal peer review.”

What's Welch so upset about? Blogging -- as he sees it, on the brink of quitting Hit & Run to go work for the L.A. Times -- devolved into partisan sniping:

I can’t shake the feeling of nostalgia for a promising cross-partisan moment that just fizzled away. Americans are always much more interesting than their political parties or ideological labels, and for a few months there it was possible for readers and writers alike to feel the unfamiliar slap of collisions with worlds they’d previously sealed off from themselves. You couldn’t predict what anyone would say, especially yourself.

People blog for lots of different reasons, and blogging is still burgeoning and developing. Don't cave into nostalgia for a Golden Age, especially one that got its golden glow from the horror that was 9/11. Things were bound to change and shake around, and some bloggers that you liked then may put you off now. But there are always a million new bloggers, and blogging is a beautifully fruitful format. The great power of blogging is the way it releases the creativity of the individual mind. That sense of not being able to predict your own opinions and observations -- that feeling of writing to discover your own ideas and interests -- is the great intrinsic value of blogging. There will always be millions of individuals blogging for the sheer joy of self-expression. Find them.

[T]he Gospel of Judas puts Judas in a positive light, identifying him as Christ's favourite disciple and depicting his betrayal as the fulfilment of a divine mission to enable the crucifixion - and thus the foundation of Christianity - to take place.

This view is similar to that held by the Gnostics - members of a 2nd Century AD breakaway Christian sect, who became rivals to the early Church.

They thought that Judas was in fact the most enlightened of the apostles, acting in order that mankind might be redeemed by the death of Christ.

YET MORE: I have seen the episode now. It's quite careful in the way it deals with Muslim sensibilities. Muhammad is not depicted (though he has been in old episodes). The show isn't about how Muslims overreact, but about how Americans overreact. And the spoof of "The Family Guy" looks as though it would be quite amusing to someone familiar with "The Family Guy."

April 5, 2006

ADDED: If you're looking for the newest results show, click on the banner at the top -- Althouse -- and then scroll down to the most recent "Amercian Idol."

ORIGINAL POST: Exciting, isn't it? 35 million votes. Ryan Seacrest still has his incipient beard. And have you noticed he's wearing elegant suits, not those sleazy shirts of yore? I like that sleek, skinny tie -- with a tie tack.

Kenny Rogers sings a song. I TiVo ahead.

I love the commercial the kids do for Ford. Really! They sing the cool Hollies song "Just One Look," and they're all working on a car in the "Pimp My Ride" style, but in the end it comes out a Ford. Kellie is the big star of the commercial. I don't even care. I love "Just One Look" -- that's all it took. That's what a candy-colored pop song should be.

Ryan announces the theme for next week: the music of Queen! A squeal of intense delight is heard across America. This is it, folks! The ultimate crazy absurdity of "American Idol" will peak. We remember the wonderful Constantine singing "Bohemian Rhapsody" last season. But this will be everybody straining to reach the Queenish heights. And we get to see a big teaser for next week, with the kids all throwing themselves into "We Will Rock You." Oh, this is too sublime! I'm declaring this, in advance, the greatest "American Idol" episode of all time.

Now, to the results. They've thought of an exquisite new form of torture. They will divide the 9 kids into 3 groups. Group 1 begins with Taylor Hicks. Group 2 with Mandisa. Elliot joins Mandisa's group. So does Paris. That looks to be the bottom 3, I think. Group 3 begins with Ace. Kellie joins Taylor, so Group 1 cannot be the bottom 3. Chris gets to join them too, so clearly, this is the top. Katharine and Bucky are sent over to Ace. Very interesting. Either 2 or 3 could be the bottom. Group 1 is told it is safe, and that is no surprise at all.

And the bottom 3 is Group 2. Mandisa, Elliott, and Paris have never been in the bottom 3 before. And they are all terrific singers. Paris is told she's safe. It's Mandisa and Elliott at risk -- the two that Dial Idol put at the bottom. And Mandisa leaves. Standing ovation. I cry a few tears for the beautiful Mandisa, don't you? She blesses us in the name of Jesus.

Throughout Wednesday's questioning, Saddam -- dressed in a black suit and white shirt -- appeared relaxed, frequently shooting grins at chief prosecutor Jaafar al-Moussawi and even reciting a short bit of poetry to the judge.

Last year, Senator Arlen Specter, Republican of Pennsylvania and chairman of the Senate Judiciary Committee, introduced a bill to require the Supreme Court to permit its arguments to be televised unless a majority of the justices voted to bar television on a case-by-case basis. Other proposals include mandating television access, or simply permitting and encouraging it.

Asked for his views on the subject, Justice Kennedy said it raised a "sensitive point" about the constitutional separation of powers.

"It's not for the court to tell Congress how to conduct its proceedings," and the reverse was also true, he said. He added, "We feel very strongly that we have intimate knowledge of the dynamics and the mood of the court, and we think that proposals mandating and directing television in our court are inconsistent with the deference and etiquette that should apply between the branches."

So, it raises the question of separation of powers, but would requiring television cameras in the Supreme Court violate separation of powers? When I first read about Specter's bill, I tossed off a post saying "I should think there is a decent argument that this would be unconstitutional, violating separation of powers." Then, a reporter called me and asked me to explain why, and I had to admit I couldn't see why the argument was any good.

Kennedy says "It's not for the court to tell Congress how to conduct its proceedings," but the U.S. Code is full of statutes telling courts how to conduct their proceedings. Reexamining the question after the reporter's call, I decided to support Specter's bill:

I think the public would be well served by the ability to see and hear [the oral] arguments, and much as I would prefer the Court to adopt cameras for itself and think it's rather intrusive for Congress to act, I think Congress should do it. I'll explain why....

The Justices have life tenure, and they know how to use it. We just saw 11 years pass without a retirement. Presidents go through through entire terms without a single opportunity to choose a fresh voice for the Court. It has become the norm for Justices to hold their seats as they pass into old age and severe illness. With the support of four gloriously able and energetic law clerks and the silence of the other Justices, no slip in a Justice's ability ever shows in his writing. But the Justices do need to take their seats on the bench for oral argument, and it is here that the public has the chance to judge them.

This judgment may be unfair. Some Justices... are better looking than others. Some will subject themselves to hair and makeup specialists, and others won't tolerate it. And getting older damages even the prettiest face. Some Justices love the verbal jousting with the lawyers in the courtroom, while others think that all they need is the written argument and opt out of the live show. With cameras, Justice Scalia would win new fans, and "The Daily Show" would wring laughs from Justice Thomas's silent face. The read is inaccurate.

But the cameras would expose the Justices who cling to their seats despite declining ability. It is true that the journalists in the courtroom might tell us if a Justice no longer manages to sit upright and look alert. But the regular gaze of the television cameras would create a permanant but subtle pressure on the Justices to think realistically about whether they still belong on the Court. Self-interest would motivate them to step down gracefully and not cling too long to the position of power the Constitution entitles them to. I think this new pressure would serve the public interest. It would institute a valuable check on the life tenure provision, which has, in modern times, poured too much power into the individuals who occupy the Court.

The fervent opposition of the Justices makes it hard to stick to my tough position, but it also enhances my suspicions. What are they trying so hard to protect? From the first-linked article:

[Justices Kennedy and Thomas], who have been the court's representatives to Congress on budget matters for several years, appeared to relish the chance to elaborate on the television question. Justice Kennedy described the absence of cameras as a positive.

"We teach that our branch has a different dynamic," he said. "We teach that we are judged by what we write."

One member of the subcommittee, Representative John W. Olver, Democrat of Massachusetts, appeared taken aback by Justice Kennedy's fervor. "You've made it clear that you are part of the cerebral branch," Mr. Olver said.

What's this "we teach" business? I'm a law professor, teaching about the Court all the time, and I certainly don't teach that the writing should be taken at face value. We try to figure out what's behind the writing. A judge may want you to accept his writing at face value, but we'd be fools to do that. And when it comes to judging the competence of a person holding life tenure to a position of great power, we should be critical and not deferential.

We all assume the family dinner is important, don't we? Considering how strongly people seem to believe family dinners are important, why don't we make more of a point of arranging our lives around them?

Articles on this subject always stress how hard it is to arrange the schedules. We always hear about the sports teams and the music lessons. Everybody's busy and active! They just need to settle in one place at one time, and everything will be swell. Maybe that's why everyone likes to say the family dinner is important, but they don't actually make a huge effort to ensure that it happens. That way one's rosy image of the family dinner remains intact. We're all just rushing around with our brimmingly full lives, but if we could manage to sit down together, we'd share all our wonderful stories of what we did all day and love, love, love.

(Here's an old post of mine that collects names of films with family dinner scenes. In film, the family dinner usually goes to hell.)

April 4, 2006

Oh, lord, how will I survive this? Country week, and worse, the guest star is Kenny Rogers (who is bizarrely unrecognizable). We see the "kids" acting like they're having a fine old time singing "The Gambler." You've got to know when this is bullshit.

First, Taylor Hicks. He sounds awful trying to do John Denver, Take me home, country road. They speed it up a lot. This is one of those versions that makes me discover a respect for the original artist that I never had. Simon: "Safe, boring, lazy..."

Mandisa. The song has a lot of words, which amazes Kenny. I don't know the song. Any man of mine? Eh? It's boring. Simon: "The song was horrible."

Elliott Yamin watches someone sleeping and somehow shows her she's his only one or whatever. Dreary song. Solid vocals!

Paris Bennett sings another song I don't know. How do I live without you? I don't even understand what makes this a country song. This is the kind of song that makes me feel that I hate music and I wish everyone would stop singing forever. Sorry. That's just how it made me feel. Power ballads. Ugh!

"Ace is a very passionate kid," says Kenny about Ace Young, and Kenny thinks this is the best song choice of the night. Ace is watching TV with the sound turned down.... Hmmmm.... Don't give me ideas.... He's sitting on a stool -- always a bad omen on "AI." And he's singing through his nose. That's not allowed, is it? But he sings a high melisma at the end, and I'm inclined to forgive him.

Kellie Pickler. Ryan: "Okay, let's clear this up. Some people have said that this naivete you've shown on the show is a bit of an act. What is the truth, Kellie?" She says, "Oh, Ryan, you've caught me. I am a big faker." Unfortunately, not. She lays it on thick with the calamari and the salmon... Ick! "Here's you one chance, Fancy, don't let me down." I don't like her, as you can see, but I think she did a great job on this song.

Chris Daughtry. Kenny acts like it's hard for a rocker to find a way to sing country, but is it? Lots of these country songs rock. Just pick one. Pretty nice. And he looked adorable, with his intense brown eyes and his bald head. Simon calls the song boring. Yeah, that's true.

Katharine McPhee. She needs to rescue herself tonight, after last week, falling in the bottom two. Bringing out the Elvis in me. She looks very pretty and gets out some great notes (but swallows most of the song).

Ooh, Bucky goes last. Interesting! Bucky Covington. But it's really weak. I think he's the one that needs to slip away... or no, it ends well, as songs so often do on "American Idol."

Now, this is a difficult week. Who should leave? The only one who is truly safe is Kellie. Taylor was rather bad, but he's got fans, we know. Bucky's in danger. So is Katharine. I wouldn't be surprised if Paris was in the bottom three. I think Ace is safe, and so are Mandisa, Elliott, and (my favorite) Chris.

Expose the Left has the video of Wolf Blitzer's interview with Cynthia McKinney. (Via Instapundit.) I'm surprised she did an interview at all, since she faces criminal prosecution for her interaction with the Capitol Police the other day. Even with two lawyers, she risked making statements that could be contradicted by a security video and by testimony from multiple witnesses.

Her goal, however, was to merge her legal problem with the larger issue of racial profiling. Expose the Left and other bloggers may ridicule her for this, but they are not her audience. She was, in fact, somewhat successful in reframing the issue, in my opinion (and I'm sure her target audience is much more willing to accept the reframing than I am).

Her main point was that the Capitol Police are supposed to recognize everyone's face. The identifying pin cannot be enough to justify waving members of Congress past security, because it could be faked. Now, it's quite clear to me that she should have stopped when asked and certainly not hit anyone, but I can understand her being irritable about the subject of not being recognized. There is the well-known problem of white people thinking it is hard to tell black persons apart, and she's entitled to be touchy about that. She says there have been incidents in the past where she has been taken as the assistant to someone much younger than her when that younger person was white and male. I'm not black, but I am female, and I know a little something of the kind of experiences she's had.

Blitzer put up an old and a new photo of her in which the only thing that is different is her hair, and it is very different. But security personnel need to recognize faces, she says, and her face is very recognizable. That's true. There are few black female members of Congress: how hard can it be to learn their faces? Maybe they are hassling her because they don't like her, she suggests.

She's also sensitive about her hair, and hair is a traditionally sensitive topic too. They need to know my face, not just judge me by my hair, she says. I note that the old hairstyle was pulled back and restrained, while the new one is fluffy and natural. Did the new hairstyle alarm the police? If so, does that suggest that they are more easily alarmed by black people? I think it is likely that the police looked at the hair so much they didn't look at the face and missed their chance to recognize her, but in McKinney's reframing, the attention to hair is fraught with racial meaning.

Before you reject her presentation and go into some reflexive nattering about "the race card," you ought to try to think about how her arguments resonate with the people who vote for her. I think she accomplished what she set out to do when she decided to do the interview.

IN THE COMMENTS: Lots of discussion, but the most useful point, I think, is that the special treatment of members of Congress should end. The pin really isn't enough, since it can be faked. And now we know the pin isn't reinforced by much of a recognition element. And if the police have a special problem recognizing women (because of hairstyle changes) or recognizing black persons, that is all the more reason to change the security protocol. If you can't give all the members the same VIP treatment, stop giving them VIP treatment.

Says Donald Trump, attempting to discuss the issue of fairness, presented by one contestant on "The Apprentice," Lee, absenting himself from two tasks in order to observe Jewish holidays. The point is you can't fire him for that. You just have to accept the situation. It doesn't really mean that life sucks, but the message is there. Lee can't be fired. Nevertheless, clueless Bryce chooses Lee, along with Lenny, to come back to the boardroom.

Bryce was pegged from the start to go. There he was blabbing pointlessly when Charmaine tried to tell him that they needed to leave to meet with the execs (and they arrive 25 minutes late). Then he blabbed annoyingly in the boardroom too, even repeatedly interrupting Trump, as he tried to justify his ridiculous decision to target Lee. Fired, he was still blabbing in the taxicab: It wouldn't hurt Trump to listen once in a while.

There was that interlude before the boardroom when Bryce seemed to lead his group in a mutual support session, to the point where he had Charmaine believing that maybe their love would move Trump to keep them all. Bryce mocked Charmaine for her naivity, but then he went into the boardroom and acted as if he believed it could play out that way. Have we ever seen Carolyn smirk so severely at anyone?

"In light of the previous changes in his custody status and the fact that nearly four years have passed since he first was detained, Padilla, it must be acknowledged, has a continuing concern that his status might be altered again," Kennedy wrote... "That concern, however, can be addressed if the necessity arises."

Deborah Pearlstein, director of law and national security at Human Rights First, said: "This is a warning shot for the administration. It would be hard for the administration not to see it that way."

Pearlstein said the court may have given away the outcome of a second case arising from its strategy in the war on terror. Justices heard arguments last week in an appeal by a foreign terrorist suspect facing a military commission on war crimes charges at Guantanamo Bay, Cuba. Justices seemed skeptical of the government's arguments.

I'd like to see some more explanation of Pearlstein's theory. Is it just based on last week's argument, or is it an inference from today's vote? If the latter, I don't see it. Three justices wanted to hear the case: Souter, Ginsburg and Breyer. Stevens could have provided the fourth vote needed to grant certiorari, but he joined the Kennedy opinion. Gina Holland called that a "surprising... unusual alliance." Isn't the simplest explanation that Stevens is predicting what the Court would do with Padilla's case, perhaps based on what he already knows about the outcome of the Guantanamo case (Hamdan)?

Some commentary:Orin Kerr: "Some will try to look for significant signs in the fact that both Stevens and Chief Justice Roberts joined Kennedy’s opinion, but I don’t know if that is justified."

Steve Vladek: "Justice Stevens?? It was his dissenting opinion two years ago that concluded that Padilla's case implicated 'nothing less than the essence of a free society.'"Marty Lederman: "[E]vidently Justice Kennedy was not prepared to give either side of the Court the necessary assurance of his views on the merits; this might explain, for example, Justice Stevens's decision not to provide the fourth vote..."

Tung Yin delves into the technical question of whether the case is moot, because Padilla originally asked to be brought to trial and the government has proceeded to do exactly that.

I agree with Justice Ginsburg that the case falls within the "voluntary cessation" exception to the mootness doctrine. The exception is designed to prevent a party from creating mootness by changing its behavior, when it would be able to return to its old ways after it has extricated itself from the litigation. But the question in Padilla was whether to grant cert, and the Court has discretion.

As Kennedy writes: "Whatever the ultimate merits of the parties' mootness arguments, there are strong prudential considerations disfavoring the exercise of the Court's certiorari power." That is, we don't need to say whether we could hear the case if we wanted to, because we don't want to.

Under the circumstances in this case, the government is unlikely to go back to its old behavior. Kennedy makes a point at the end of saying that the courts will be monitoring the government and should act quickly if Padilla's status is changed again.

But why isn't he interested in judicial review of the government's treatment of Padilla in the past?

That Padilla's claims raise fundamental issues respecting the separation of powers, including consideration of the role and function of the courts, also counsels against addressing those claims when the course of legal proceedings has made them, at least for now, hypothetical.

This is the standard reason judges give for requiring a real controversy. It's what you say after you've decided to avoid the case when you've got discretion to hear it. Compare Ginsburg's opinion:

This case, here for the second time, raises a question "of profound importance to the Nation," Rumsfeld v. Padilla, 542 U.S. 426, 455 (2004) (STEVENS, J., dissenting): Does the President have authority to imprison indefinitely a United States citizen arrested on United States soil distant from a zone of combat, based on an Executive declaration that the citizen was, at the time of his arrest, an "enemy combatant"? It is a question the Court heard, and should have decided, two years ago. Ibid. Nothing the Government has yet done purports to retract the assertion of Executive power Padilla protests.

So take your pick: It's a very important question, so we should answer it; or it's a very important question, so we shouldn't answer it.

In concluding unanimously today that the defendant lied to federal agents after his arrest in August 2001, that he did so contemplating that human life would be taken, and that at least one victim of the Sept. 11 attacks died as a direct result of his deception, the jurors said death should at least be considered as the appropriate punishment.

The jury of nine men and three women now move into the next phase of the sentencing trial, in which they will decide whether he should actually be executed...

In this next phase, there will be testimony from those whose relatives died on in the attacks.

With Sandra Day O'Connor's retirement, there is a new swing justice in town....

Looking back at the 5-to-4 decisions in which Justice O'Connor was in the majority suggests that having Justice Kennedy replace her in the center could mean major changes. She provided the fifth vote to reject a constitutional challenge to the McCain-Feingold campaign finance law, while he dissented. She was the fifth vote to uphold affirmative action in public university admissions, while he again dissented. Although both justices have supported Roe, he has voted to uphold greater restrictions on abortion rights....

[T]here are signs that his views are evolving. Last year, he wrote the decision ending the juvenile death penalty, reversing his 1989 position. And he has become an increasingly strong advocate for taking international law into account, to the distress of many conservatives.

He is also someone who cares what other people think. The Supreme Court scuttlebutt has always been that he is open to persuasion by colleagues, and even law clerks. It is sometimes said condescendingly, but there is something refreshing about a justice who genuinely seems to have an open mind. When he switched sides on the juvenile death penalty, he wrote a thoughtful opinion noting both that the American people had turned against it and that "the overwhelming weight of international opinion" opposed it.

Perhaps most important, it is not yet clear how Justice Kennedy will be changed by his vastly expanded influence. Justice O'Connor was very aware of her position as the swing justice, and it made her deeply aware of the impact her votes had on real people's lives. Justice Kennedy may inherit that mantle of concern. It is one thing to argue in dissent that campaign finance laws violate the First Amendment. It is quite another to cast the vote that prevents a nation weary of lobbying scandals from trying to clean up its elections.

It was often said that the Rehnquist Court was really the O'Connor Court. In the same way, the Roberts Court could turn out to be the Kennedy Court. It is too early to know what that would mean — even Justice Kennedy probably couldn't say. But it is likely that rather than pleasing any ideology or interest group, the court will be guided by one man's sometimes idiosyncratic, but evidently quite sincere, attempt to reach the right result.

So Cohen is hoping for outcome-oriented decisionmaking from the newly empowered justice. Nice of him to come right out and say it. He gives little credit to Kennedy's commitment to First Amendment rights, which has, I think, been the most distinctive aspect of his role on the Court.

I assume Kennedy will be changed by his new position of power, but I hope he uses it to bring principle and clarity to the law.

That's a description of childbirth, accomplished at home, by candlelight, with the help of a midwife. It's pretty when it's pretty, but what if the baby dies, and it wouldn't have died in the hospital? Indiana is prosecuting a midwife:

Stacey A. Tovino, who teaches at the Health Law and Policy Institute at the University of Houston Law Center and has written on midwifery and the law, said prosecutions of midwives almost always started with a tragedy.

"No one complains until a baby dies or a mom dies," Professor Tovino said. But once the issue arises, she said, legislatures often become involved as well, with doctors and midwives engaging in a bitter struggle over the proper regulation of midwives, one driven by a mix of motives that are difficult to disentangle....

"Midwifery is an autonomous profession," [a midwife, Mary Helen] Ayres said. "It's an art and a science that predates the medical model of care. Midwifery sees birth as normal and basically safe.

"It's made safer by reliance on the woman's power," she continued. "The medical model assumes the woman is passive and her body needs to be acted upon. Every birth is presented as a potential disaster from which every woman needs to be protected and potentially rescued."

Every birth is a potential disaster! So is every car trip. Lots of us assume we will be lucky, especially when the odds are in our favor. That's why when we lose we say "Why me?" We rarely think to say "Why not me?" The question is whether the state ought to save us -- and our children -- from our relentless optimism.

The NYT redid its webpage. I find it incredibly hard to judge because I was so used to the old look that the new look feels uncomfortable. The right sidebar is so wide now that the page feels lopsided to me. Is that only because the old page is burned into my brain?

The print has gotten light. There is something elegant about gray and not black print, but when you're used to black, gray gives you that failing eyesight effect.

I do like the way it looks from about mid-page down. The line of square photos is especially nice.

I'll get used to this, I guess. And the fact is, I've long preferred the paper Times to the webpage, because I feel I have a better view of things. Will the redesigned page beat the paper version? Do they want it to?

I've been ignoring that book "Manliness" by Harvy C. Mansfield, but Christina Hoff Sommers is writing about it -- in the Weekly Standard -- so I'm going to pay some attention:

After almost 40 years of feminist agitation and gender-neutral pronouns, it is still men who are far more likely than women to run for political office, start companies, file for patents, and blow things up. Men continue to tell most of the jokes and write the vast majority of editorials and letters to editors.

(And blogs.)

And--fatal to the dreams of feminists who long for social androgyny--men have hardly budged from their unwillingness to do an equal share of housework or childcare. Moreover, women seem to like manly men: "Manliness is still around, and we still find it attractive," says Mansfield.

We? Harvey's a guy. And while I'm here, let me say that the arithmetic on the housework sharing question is always screwy. There is no whole from which to figure out what half is. If you think an hour a day is the right total and your partner thinks an hour a week is the right total, how much does he need to do to avoid the charge that he hasn't done his share?

Skipping way ahead in the article (past a long section on philosophy that I won't try to summarize):

What would Mansfield have us do?...

First of all, he thinks we should clearly distinguish between the public realm and private life. In public we should pursue, as best we can, a policy of gender neutrality. He firmly believes that the law should guarantee equal opportunity to men and women. However, "our expectations should be that men will grasp the opportunity more readily and more wholeheartedly than women."

Though he mentions it only in passing, it follows from his position that our schools should be more respectful and accepting of male spiritedness; they must stop trying to feminize boys. A healthy society should not war against human nature. It should, he says, "reemploy masculinity." That means it has to civilize it and give it things to do. No civilization can achieve greatness if it does not allow room for obstreperous males.

In the private sphere, his advice is vivé la difference! A woman should not expect a manly man to be as committed to domesticity as she is; nor should she assume that he is as emotionally adept as her female friends. Manly men are romantic rather than sensitive. They need a lot of help from females to ascend to the higher ethical levels of manhood, and Mansfield urges women to encourage them in ways respectful of their male pride.

A classic feminist question is why must it be women's job to make men good? One answer is that men will be so horribly bad if we don't.

ADDED: I hate when I have to get out my sledgehammer, but some hotheads writing about me elsewhere don't get my sarcasm. I heartily resist the notion that it is women's work to make men good.

No, I didn't find some crazy new way to screw up the jump to Daylight Savings Time, I just wrote 10 a.m. down in my calendar long ago, for some unknown reason. I procure a paper copy of the bench memo and head across the street to Starbucks.

The barista is chatting to someone about Daylight Savings Time and the effect on the clientele: "These are the 8 o'clock people at 9 o'clock. Or maybe it's the pre-church crowd? But what do I know about church? I mean I've heard" -- sweeping gesture -- "of this deity" -- gesture -- but what do I know?"

There's an astrology column taped to that circular section of the counter where they present the coffee drinks. A man waiting for his latte scans the column and expresses pleasure that he's supposed to have a good day. He's a Virgo he tells us. The barista exclaims that, ooh, he's a Virgo, and an older woman, also waiting for a coffee, says that her son is a Virgo. I read the Virgo message and point out the introductory clause: "It says you're going to have a good day assuming you first complete your duties."

Over at the fixings stand, I see this:

"Restore yourself." Not -- as I think it would have read a few years back -- "Indulge yourself." "Restore yourself" is less hedonistic, a bit spiritual. He restoreth my soul. But what would you have to be if what restored you -- what brought you back to yourself -- was a vanilla sunshine cupcake and a macchiato crisscrossed with gooey chocolate? Macchiato means "stained," and this plays havoc with the religious imagery "restore" evokes for me. But then it's restore yourself. No deity -- you may have heard of one -- is going to restore you. It's up to you to restore yourself -- to your truly stained condition -- at Starbucks, where God seems rather alien -- something heard about one time -- but astrology belongs taped to the part of the place that is most like an altar, where the barista bestows the restorative liquid upon us.

The woman whose son is a Virgo comes over to sugar her coffee and asks me if I'm "with that gentleman," meaning the customer who liked his horoscope. She seems to have appreciated my humor, though in expressing her appreciation, she uses the word "assumptuous." I say no I'm not. "I don't know anything about what unperformed duties he might have." I imagine the alternate universe in which I am with that guy and I'm reading the introductory clause of his horoscope to needle him about his duties -- the undone things that stain his soul.

I find a seat. I read the bench memo and do the acrostic.

I scribble some notes on the blog post I plan to write. I make a note to connect the Starbucks material to a conversation I'd just had with a colleague of mine over in the Supreme Courtroom.

"Oh, yeah, I vaguely remember that. Well, you can't have that. This is a temple of justice. But then, we do worship the body in this culture of ours. So maybe..."

But the noon hour approaches. Time to get back to the Supreme Court.

The problem -- here's the PDF of the record on appeal -- is about a student group, a conservative religious group, that loses its state university funding because it excludes a gay student from membership. The university had conditioned the funding on the group's acceptance of a nondiscrimination policy. We judges try to ask a lot of hard questions to give the students the opportunity to show what they can do. Both teams do a fine job. The two young men who win -- they're from Washburn University School of Law -- can be seen, unblurred, in this picture I took when I first arrived at 10.

Rushing about so much she's a complete blur is Julia Ledbetter, the Moot Court boardmember in charge of the competition. Somewhat less blurred is my aforementioned colleague, the wonderful Stewart Macaulay.

I don't have the transcript yet, but I just saw Chris Wallace vigorously interview Russ Feingold on Fox News Sunday. Feingold mostly stood his ground on the censure issue, but Wallace got in many good questions. The question that was the hardest to answer listed all the Democrats -- including Kennedy and Feinstein -- who failed to show up for the Judiciary Committee hearing on the censure motion. Feingold could only say the hearing was on a Friday, and you know how it is with Senators and Fridays... and Specter intended to minimize attendance when he scheduled the hearing for a Friday...

Daylight Savings at last! I've been waking up to the sun for a couple weeks now, so I'm already caught up to the new time. What a relief to get this readjustment! It's one thing to wake up and want to get up and look at the time and see that it's 5, and another to see that it's 6. It's fine to get up at 6, but stupid to feel that you have to get up and it's only 5. And the real pleasure will come this evening, when the day feels newly long. When you're younger, you like the return to Standard Time. In spring, you think, now I must pay for the pleasure of gaining that extra hour last fall. But when you're older, weeks ahead of Daylight Savings, you feel there's an excess hour in there that needs cutting out.

But whether I've got one less hour this morning or not, I'm more pressed for time than usual for a Sunday, because I need to show up at the Capitol this morning to play judge for a moot court competition. Last year, I photoblogged moot court judging at the Dane County court house. We've got a new court house now, but I'm not going to be there. We'll be in the Supreme Court this morning, which is a very grand old place. I'll try to get some photos for you.